Pena et al v. Taylor Farms Pacific, Inc. et al

Filing 16

ORDER granting 10 EX PARTE APPLICATION signed by Magistrate Judge Allison Claire on 7/26/13: The parties shall meet and confer pursuant to Rule 26(f) within twenty-one (21) days from the date of this order. (Kaminski, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARIA DEL CARMEN PENA, et al., 12 Plaintiffs, 13 14 No. 2:13-cv-1282 KJM AC v. ORDER TAYLOR FARMS PACIFIC, INC., et al., 15 Defendants. 16 Pending before the court is defendant Taylor Farms Pacific, Inc.’s (“Taylor Farms”) ex 17 18 parte application for an order authorizing discovery. Plaintiffs oppose the application. The court 19 has determined that this matter shall be submitted on the papers. On review of the ex parte 20 application, the documents filed in support and opposition, and good cause appearing therefor, 21 THE COURT FINDS AS FOLLOWS: RELEVANT FACTUAL AND PROCEDURAL BACKGROUND 22 23 24 A. Initiation of Case in State Court and Removal to Federal Court Plaintiffs initiated this wage-and-hour class action against defendant Taylor Farms on 25 February 17, 2012 in the San Joaquin County Superior Court. See Notice of Removal (“NOR”) 26 Ex. A, ECF Nos. 2-2, 2-3. Taylor Farms removed this case to this court on June 26, 2013, the 27 same day that plaintiffs’ sixth amended complaint was deemed filed by the state court. See NOR 28 1 ¶ 2, Ex. B. The operative sixth amended complaint names four additional defendants (Abel 1 1 Mendoza, Inc., Manpower, Inc., Quality Farm Labor, Inc., and Slingshot Connections, LLC), see 2 id. Ex. B, ECF No. 2-4, and jurisdiction here is premised on 28 U.S.C. § 1332 (Taylor Farms 3 contends that the addition of Manpower, Inc. to this case satisfies the diversity requirement of 4 § 1332(d)(2)(A)).1 On July 19, 2013, Taylor Farms filed a motion to dismiss, which is set for 5 hearing on August 16, 2013 before the Honorable Kimberly J. Mueller. ECF No. 13. 6 B. 7 Superior Court Case Management Order On October 10, 2012, a case management order was entered setting forth a January 11, 8 2013 deadline for filing a motion for class certification and a March 22, 2013 hearing on 9 plaintiffs’ motion. See ECF No. 2-11 at 31-32. On December 11, 2012, plaintiffs asked for an 10 extension of time to file a motion for class certification on the grounds, despite their diligence in 11 undertaking discovery by way of interrogatories, requests for production of documents, requests 12 for admissions, and depositions, they needed additional time to conduct discovery and gather 13 supporting evidence. ECF No. 2-12 at 24-30. The parties then stipulated to an extension of the 14 class certification deadlines. ECF No. 2-14 at 181-84. 15 In March 2013, plaintiffs filed a second ex parte application to continue the class 16 certification deadlines for the purpose of conducting additional discovery to support their motion 17 for class certification. ECF No. 2-21 at 16-26. The ex parte application was granted by the state 18 court presiding judge, setting August 13, 2013 as the deadline for filing a motion for class 19 certification and October 16, 2013 as the hearing date on plaintiffs’ motion. ECF No. 2-21 at 29- 20 30. This was the case management order in effect at the time this was case removed to this court. 21 C. 22 23 Removal to Federal Court Following removal to this court, Judge Mueller issued an order setting a pretrial scheduling conference for October 31, 2013. ECF No. 4. Judge Mueller’s order directs the 24 1 25 26 27 28 While in state court, the parties participated in extensive motion practice directed to Taylor Farm’s demurrers and/or motions to strike plaintiffs’ pleadings. See, e.g., Motion practice directed to second amended complaint (ECF No. 2-10 at 93-109; ECF No. 2-11 at 2-10; ECF No. 2-11 at 28-30; ECF 2-11 at 42-43); Motion practice directed to third amended complaint (ECF No. 2-11 at 74-83; ECF No. 2-15 at 1-2; ECF No. 2-15 at 16-20; ECF No. 2-16 at 104-05); Motion practice directed to fifth amended complaint (ECF No. 2-21 at 69-116; ECF No. 2-22 at 3-38; ECF No. 2-10 at 4). 2 1 parties to meet and confer pursuant to Federal Rule of Civil Procedure 26(f) and Local Rule 2 240(b) at least 21 days before the conference and to submit a joint status report that includes the 3 Rule 26(f) discovery plan at least 7 days before the conference. Id. at 2. 4 As to cases removed from state court, Judge Mueller’s order states only as follows: 5 In the event this action was originally filed in a state court and was thereafter removed to this court, the removing party or parties shall, immediately following such removal, serve upon each of the other parties named in the complaint, and upon all parties subsequently joined, a copy of this order and shall file with the Clerk of the Court a certificate reflecting such service. 6 7 8 9 ECF No. 4 ¶ 4. 10 11 Attached to the order setting status conference is Judge Mueller’s Standing Order, which provides the following directive in removed cases: 12 All documents filed in state court, including documents appended to the complaint, answers and motions, must be refiled in this court as a supplement to the Notice of Removal, if not already included. See 28 U.S.C. § 1447(a), (b). If the defendant has not yet responded, the answer or responsive pleading filed in this court must comply with the Federal Rules of Civil Procedure and the Local Rules of the Eastern District. If a motion was pending in state court before the case was removed, it must be re-noticed in accordance with Local Rule 230. 13 14 15 16 17 ECF No. 4-1 ¶ 9. 18 D. 19 The Instant Dispute On July 16, 2013, nearly three weeks after this case was removed, Taylor Farms filed an 20 ex parte application for an order authorizing discovery. ECF No. 10. Taylor Farms contends 21 that, since removal, plaintiffs have refused to conduct discovery until participation in a Rule 26(f) 22 conference, which they refuse to participate in because they assert that it is premature at this time. 23 Taylor Farms argues that, since the parties have conducted extensive discovery in state court and 24 since a case management schedule is already in place, a Rule 26(f) conference is unnecessary 25 because its goals and aims have been satisfied long ago. Alternatively, since the state court’s case 26 management order remains in effect, defendant claims that it must conduct limited discovery to 27 28 3 1 comply with those deadlines.2 2 Plaintiffs oppose the application based on the following: (1) the express language of Rule 3 26(d)(1), which provides that “[a] party may not seek discovery from any source before the 4 parties have conferred s required by Rule 26(f)”; (2) there is no urgency for ex parte relief; (3) 5 plaintiffs are contemplating filing a motion to remand, which, if granted, would return discovery 6 disputes to state court; (4) four new defendants have been added; and (5) Taylor Farms’ removal 7 delayed and interfered with discovery propounded by plaintiffs prior to removal. 8 DISCUSSION 9 “[A]fter removal, the federal court takes the case up where the State court left it off.” 10 Jenkins v. Commonwealth Land Title Ins. Co., 95 F.3d 791, 795 (9th Cir. 1996) (citing Granny 11 Goose Foods, Inc. v. Brotherhood of Teamsters Local 70, 415 U.S. 423, 436 (1974) (quoting 12 Duncan v. Gegan, 101 U.S. 810, 812 (1880)); see also 28 U.S.C. § 1450 (“Whenever any action is 13 removed from a State court to a district court of the United States . . . . All injunctions, orders, 14 and other proceedings had in such action prior to its removal shall remain in full force and effect 15 until dissolved or modified by this district court.”). “The federal court . . . treats everything that 16 occurred in the state court as if it had taken place in federal court.” Carvalho v. Equifax 17 Information Services, LLC, 629 F.3d 876, 887 (9th Cir. 2010) (citing Butner v. Neustadter, 324 18 F.2d 783, 785 (9th Cir. 1963)). Accordingly, where the state court has entered an order, the order 19 should be treated as though it had been validly rendered in the federal proceeding.” Id. (quoting 20 Butner, 324 F.2d at 785). The court does, however, have the authority to dissolve or modify a 21 state court order that was entered prior to removal. See 28 U.S.C. § 1450. 22 Here, the presiding judge in the state action granted plaintiffs’ ex parte application to 23 continue the class action certification deadlines, with August 13, 2013 as the deadline for filing a 24 motion for class certification and October 16, 2013 as the hearing date on plaintiffs’ motion. 25 Because this case management order was in effect at the time this was case removed and further 26 because Judge Mueller has not “dissolved or modified” through the order setting a scheduling 27 28 2 In order to adequately oppose plaintiffs’ motion for class certification, Taylor Farms contends that it needs limited remaining written discovery and to take the depositions of four individuals. 4 1 conference or her Standing Order, those deadlines “shall remain in full force and effect.” 28 2 U.S.C. § 1450. 3 Plaintiffs disagree with this analysis, relying on McIntyre v. K-Mart Corp., 794 F.2d 4 1023, 1025 (5th Cir. 1986), to argue that the act of removal vacates all state-ordered deadlines 5 and resets all matters. But McIntyre merely stands for the unremarkable rule that the federal 6 procedural rules trump state procedural rules once a state court action is removed. In that case, 7 the Fifth Circuit upheld the district court’s order limiting the number of interrogatories to which 8 the receiving party was required to respond to twenty-five pursuant to Federal Rule of Civil 9 Procedure 33(a), even though the propounding party served more than twenty-five interrogatories 10 prior to removal and as authorized by state procedural rules. As a preliminary matter then, the 11 undersigned finds that McIntyre does not vacate all dates in this case, and the case management 12 order entered in the state action remains in full force and effect here until modified or vacated by 13 Judge Mueller. 14 The court turns now to the question of whether the Federal Rules of Civil Procedure 15 mandate a discovery stay in a removed action pending participation in a Rule 26(f) conference. 16 Generally, Rule 26(d) states that “[a] party may not seek discovery from any source before the 17 parties have conferred as required by Rule 26(f), except . . . when authorized by these rules, by 18 stipulation, or by court order.” Fed. R. Civ. P. 26(d)(1) (emphasis added). In considering the 19 relationship between Rule 26(d)(1) and § 1450, courts have concluded that, in the context of 20 discovery orders issued by a state court prior to removal, “[n]either § 1450 nor the Federal Rules 21 of Civil Procedure carves out discovery orders from the scope of § 1450, or treats state court 22 discovery orders differently from other state court orders.” Samuel v. Aber Co., Inc., 2009 WL 23 2242418, at * 2 (M.D. La. July 24, 2009); Int’l Transport Workers Federation v. Mi-Das Line SA, 24 2013 WL 1403329, at *4 (E.D. La. Apr. 4, 2013) (“Where a state court has previously ruled on 25 the validity of a discovery order prior to removal, that order remains ‘in full force and effect’ 26 pursuant to 28 U.S.C. § 1450, and can be enforced after removal at the Court’s discretion, even if 27 no Rule 26(f) discovery conference has occurred in federal court.”) (citing Samuel, 2009 WL 28 2242418, at *2)). See also Kogok v. T-Mobile USA, Inc., 2013 WL 1942211, at *1 (S.D. Cal. 5 1 May 9, 2013) (on a long-pending action that had only recently been removed, the court declined 2 to stay the state court’s discovery order). Thus, parties in a removed action are not relieved from 3 their obligation to comply with discovery orders issued in state court even though they have not 4 yet participated in a Rule 26(f) conference. 5 The status of discovery requests served prior to removal, however, remains in dispute. 6 Some courts do not consider these to constitute “proceedings” within the meaning of 28 U.S.C. 7 § 1450 and, therefore, find that they become null and void on removal. See Sterling Savings 8 Bank v. Federal Ins. Co., 2012 WL 3143909, at *2 (E.D. Wash. Aug. 1, 2012) (finding that 9 discovery requests filed in state court prior to removal are not binding in federal court because at 10 the time of removal the Federal Rules of Civil Procedure control and pursuant to those rules, 11 discovery does not begin until the parties participate in a Rule 26(f) conference) (citing McIntyre, 12 794 F.2d at 1025, and Riley v. Walgreen Co., 233 F.R.D. 496 (S.D. Tex. 2005) (“[b]y its express 13 terms, Rule 26(d) bars discovery until after the parties have conferred about a discovery plan as 14 directed by Rule 26(f)”)). But see Schwarzer, Wallace, Tashima, Wagstaffe, Cal. Prac. Guide 15 Fed. Civ. Pro. Before Trial Chap. 2D-9 (“Arguably, discovery requests (e.g., notice of 16 depositions, document demands, etc.) served before removal should also be given effect under 28 17 USC § 1450 unless modified or terminated by the federal court. Discovery requests appear to be 18 ‘proceedings had in such action prior to removal’ within the meaning of § 1450.”); Mann v. 19 Metro. Life Ins. Co., 1999 WL 33453411, at *2 (W.D. Va. July 9, 1999) (holding that “the 20 removal of the instant case from state to federal court did not affect the validity and force of 21 plaintiff’s requests for admissions” but nevertheless denying the plaintiff’s motion to have 22 requests for admission deemed admitted). 23 With this legal framework in mind, the court considers Taylor Farm’s ex parte application 24 for an order authorizing discovery. Specifically, Taylor Farms urges the court either to find that 25 there is no need for a Rule 26(f) conference because its goals have already been met by the 26 parties’ discovery efforts in state court or to issue an order shortening the deadline for the parties 27 to meet and confer pursuant to Rule 26(f). 28 //// 6 1 1. 2 Taylor Farm first argues that a Rule 26(f) conference is unnecessary because its goals Scope and Purpose of the Federal Rules of Civil Procedure 3 have been satisfied by the parties’ discovery efforts in state court. The goal of Rule 26(f) is for 4 the parties to meet and confer as soon as practicable “to consider the nature and basis of their 5 claims and defenses . . . ; discuss any issues about preserving discoverable information; and 6 develop a proposed discovery plan.” Fed. R. Civ. P. 26(f)(1)-(2). The discovery plan, in turn, is 7 to state the parties’ views and proposal on matters such as “the subjects on which discovery may 8 be needed, when discovery should be completed, and whether discovery should be conducted in 9 phases or be limited to or focused on particular issues,” Fed. R. Civ. P. 26(f)(3)(B); “any issues 10 about claims of privilege or of protection as trial-preparation materials,” id. 26(f)(3)(D); and 11 “what changes should be made in the limitations on discovery imposed under these rules or by 12 local rule, and what other limitations should be imposed,” id. 26(f)(3)(E). 13 In support of its position Taylor Farms relies heavily on the parties’ state court discovery 14 efforts, plaintiffs’ efforts in particular. The record establishes that plaintiffs (1) sent to defendant 15 a “Demand for Preservation of Electronically Stored Information” on or around the time the case 16 was initially filed, ECF No. 2-10 at 25-30; (2) stipulated to limitations regarding their and 17 defendant’s respective expert witnesses, ECF No. 2-10 at 110-11; (3) entered into a stipulated 18 protective order, ECF No. 2-10 at 113-22; (4) served interrogatories, requests for production of 19 documents, and requests for admissions, see ECF No. 2-14 at 181-84; (5) conducted depositions 20 of Taylor Farm’s person most knowledgeable, see ECF No. 2-12 at 35-26; (6) conducted 21 depositions of Taylor Farm’s representatives, see ECF No. 2-14 at 181-84; (7) engaged in 22 extensive meet and confer efforts regarding defendant’s discovery responses and responsive 23 documents, see ECF No. 2-14 at 181-84; and (8) filed motions to compel further responses to 24 interrogatories and requests for production of documents, see ECF No. 2-12 at 48-67, ECF No. 2- 25 13 at 1-200; ECF No. 2-14 at 1-179; ECF No. 2-15 at 22-150; ECF No. 2-16 at 1-103; ECF No. 26 2-16 at 150; ECF No. 2-17 at 15-16; ECF No. 2-17 at 59-60; ECF No. 2-22 at 49-53. 27 28 In considering Taylor Farm’s first argument, the court is guided by the overriding scope and purpose of the entire Federal Rules of Civil Procedure, which is that they “should be 7 1 construed and administered to secure the just, speedy, and inexpensive determination of every 2 action and proceeding.” Fed. R. Civ. P. 1. Rule 1 and the parties’ discovery efforts lend 3 considerable support to Taylor Farm’s position that the goal of Rule 26(f) has been satisfied. The 4 parties had established a discovery plan as related to plaintiffs’ motion for class certification, a 5 case management order was issued by the state court, and the parties were proceeding with 6 discovery accordingly. Nevertheless, Judge Mueller did schedule a pretrial scheduling 7 conference in this case, suggesting the need to revisit scheduling in light of removal. The 8 undersigned therefore declines to find that a Rule 26(f) conference is unnecessary entirely. 9 2. 10 The Class Certification Deadline The court nonetheless agrees with Taylor Farms that discovery is necessary now in order 11 to comply with the current class certification deadlines. As discussed supra, the state court’s case 12 management order setting August 13, 2013 as deadline for filing a motion for class certification 13 and October 16, 2013 as the hearing date on plaintiffs’ motion “shall remain in full force and 14 effect” until “dissolved or modified” by Judge Mueller. 28 U.S.C. § 1450. Since Judge Mueller 15 has not dissolved or modified the case management order, the parties are facing fast-approaching 16 deadlines. Contrary to plaintiffs’ position, there is indeed some urgency to the need to conduct 17 discovery now. The court therefore finds good cause to grant Taylor Farms’ ex parte application 18 to shorten the deadline for meeting and conferring pursuant to Rule 26(f).3 Semitool, Inc. v. 19 Tokyo Electron America, Inc., 208 F.R.D. 273 (N.D. Cal. 2002) (applying good cause standing to 20 request for expedited discovery). 21 CONCLUSION 22 Accordingly, IT IS HEREBY ORDERED that Taylor Farms’ ex parte application is 23 granted. The parties shall meet and confer pursuant to Rule 26(f) within twenty-one (21) days 24 //// 25 //// 26 27 28 3 The court also rejects plaintiffs’ arguments in opposition to the ex parte application to the extent they are based on the mere possibility that plaintiffs will file a motion to remand and on Taylor Farm’s exercise of its right to remove this action. 8 1 from the date of this order.4 2 DATED: July 26, 2013 3 4 ___________________________________ ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 /mb;pena1282.disc 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Should Judge Mueller modify or vacate the deadlines set in the state court’s case management order, on motion of a party or otherwise, then of course the court’s finding of urgency would be mooted ‒ as would compliance with this order. 9

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